In Re Appraisal of Dole Food Company, Inc., C.A. No. 9079-VCL (Del. Ch. Dec. 9, 2014). This Court of Chancery decision is helpful for those engaged in corporate litigation, and any form of civil litigation in Delaware, to the extent that it confirms well-settled Delaware law of practice and procedure, that a lawyer cannot instruct a deponent not to answer a question during a deposition merely based on an argument that the question is either irrelevant or not likely to lead to the introduction of admissible evidence.
Under Court of Chancery Rule 37, that improper instruction required fee-shifting, which means that the attorney improperly instructing the witness not to answer is now responsible (or his client is), for the costs of the aborted deposition and the costs of preparing and filing the motion to compel. The court made the distinction between the fee-shifting required in these circumstances under Rule 37 and a separate analysis that applies for costs imposed for bad faith litigation (or fee-shifting clauses in agreements).
The court read Rule 37(b) to require fee-shifting when a motion to compel is granted. See Slip op. at 33. See also June 2015 decision by the Delaware Supreme Court reading the rule in the same manner though that reading is not obvious or self-evident to some.
This opinion also includes an important analysis regarding what information must be produced in discovery for appraisal actions. Specifically, the court ordered the production of valuation materials that the plaintiffs in this appraisal action compiled prior to the lawsuit being filed. Also, the improper instruction not to answer a question during a deposition related to the same information that the deponent was required to testify about, after the plaintiff refused to produce it in reply to discovery requests. See generally materials previously provided on these pages regarding proper deposition practice in Delaware.